Krishi Upaj Mandi Samiti, UDAIPUR V. CIT, UDAIPUR

MA 11/JODH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1127 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-11-2013
• Assessment Year: misc
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Assessee Lawyers: G K GARGIEYA
• Keywords: Charitable institution; Retrospective amendment; Benefit of exemption
• Section: 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER M.A. NO.10/JODH/2013 (IN ITA NO.77/JU/2009) KRISHI UPAJ MANDI SAMITI, VS. COMMISSIONER OF INC OME TAX, MATHU GAMDA ROAD, UDAIPUR RANGE, UDAIPUR. DUNGARPUR (PAN: AAATK 9009 R). M.A. NO.11/JODH/2013 (IN ITA NO.78/JU/2009) KRISHI UPAJ MANDI SAMITI, VS. COMMISSIONER OF INC OME TAX, NEAR POWER HOUSE, UDAIPUR RANGE, UDAIPUR. FATEHNAGAR, THE. MAVLI, UDAIPUR. (PAN: AAALK 0449 B). ITA NO.77/JU/2009 KRISHI UPAJ MANDI SAMITI, VS. COMMISSIONER OF INC OME TAX, MATHU GAMDA ROAD, UDAIPUR RANGE, UDAIPUR. DUNGARPUR (PAN: AAATK 9009 R). ITA NO.78/JU/2009 KRISHI UPAJ MANDI SAMITI, VS. COMMISSIONER OF INC OME TAX, NEAR POWER HOUSE, UDAIPUR RANGE, UDAIPUR. FATEHNAGAR, THE. MAVLI, UDAIPUR. (PAN: AAALK 0449 B). 2 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 ITA NO.289/JODH/2011 ASST. YEAR: 2004-05 INCOME TAX OFFICER VS. M/S. KRISHI UPAJ MANDI S AMITI, WARD 2(1), UDAIPUR. FATEHNAGAR, UDAIPUR. (PAN: AAALK 0449 B). (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI G.K. GARGIEYA & SHRI SARVESH BALDI REVENUE BY : DR. DEEPAK SEHGAL, CIT (D.R.) DATE OF HEARING : 27.11.2013 DATE OF PRONOUNCEMENT : 29.11.2013 ORDER PER HARI OM MARATHA, JUDICIAL MEMBER: WE PROCEED TO DECIDE ALL THE ABOVE CAPTIONED MATTE R BY THIS COMMON ORDER FOR THE SAKE OF CONGRUENCE, CONVENIENCE AND BREVITY . MA-10/JODH/2013 2. THIS MISCELLANEOUS APPLICATION (M.A.) HAS BEEN F ILED UNDER THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) IN RELATION TO TRIBUNAL ORDER DATED 14.07.2009 PASSED EX-PARTE. T HE SUBMISSION OF THE ASSESSEE/APPLICANT IN THIS REGARD IS THAT DUE OPPOR TUNITY WAS NOT GIVEN TO THE ASSESSEE AND THAT IN THE INTEREST OF A JUSTICE THE MATTER NEEDS TO BE DECIDED ON MERIT 3 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 IN VIEW OF THE DICTUM OF HONBLE SUPREME COURT REND ERED IN NUMEROUS CASES. THERE WAS NO STRONG OBJECTION FROM THE OTHER SIDE, THEREFORE, KEEPING IN VIEW THE WELL SETTLED PRINCIPLE OF LAW ARISING OUT OF CONSEC UTIVE DECISIONS OF HONBLE APEX COURT AS WELL AS OTHER HONBLE COURTS AND TRIBUNALS , WE ARE OF THE CONSIDERED OPINION THAT THIS EX-PARTE ORDER DATED 14.07.2009 N EEDS TO BE RECALLED IN THE INTEREST OF JUSTICE. ACCORDINGLY, WE RECALL THE TRIBUNAL OR DER AND ALLOW THIS M.A. M.A. NO.11/JODH/2013 3. SIMILAR IS THE POSITION IN THIS CASE BUT THE EX- PARTE ORDER IS DATED 30.06.2009. WE, THEREFORE, RECALL THIS ORDER AS WELL AND ALLOW THIS M.A. ITA NOS.77 & 78/JODH/2009 4. THESE APPEALS WERE HEARD TOGETHER AFTER RECALLIN G THE TRIBUNAL ORDERS IN QUESTION. IN BOTH THE APPEALS SIMILAR ISSUES ARE I NVOLVED. 5. BRIEFLY STATED, THE FACTS IN ITA NO.77/JU/2009 A RE THAT THE APPELLANT NAMELY KRISHI UPAJ MANDI SAMITI, MATHU GAMDA ROAD, DUNGARP UR IS THE LOCAL BODY GOVERNED BY STATE OF RAJASTHAN AND IS KNOWN AS TO B E CHARITABLE INSTITUTION UNDER 4 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 THE INCOME TAX ACT WHICH IS DULY REGISTERED UNDER S ECTION 12AA OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT)T W.E.F. 01.04.2 005. IN FACT, WHILE ALLOWING APPLICATION DATED 06.10.2005 MADE BY THE APPELLANT IN THE PRESCRIBED FORMAT, THE LD. CIT, UDAIPUR RANGE, UDAIPUR VIDE HIS ORDER DATE D 19.04.2006 REFUSED TO REGISTER THE SAME. HOWEVER, IN APPEAL, THE TRIBUNA L VIDE ORDER DATED 14.03.2007 PASSED IN ITA NO.281/JU/2006 GRANTED REGISTRATION T O THE APPELLANT INSTITUTE UNDER SECTION 12AA OF THE ACT. THE LD. CIT GAVE EFFECT T O THE ABOVE TRIBUNAL ORDER VIDE ORDER DATED 20.09.2009 AND GRANTED REGISTRATION W.E .F. 01.04.2005 INSTEAD OF THE DATE FROM WHICH THE REGISTRATION WAS REQUESTED IN T HE APPLICATION MADE FOR THE GRANT OF REGISTRATION AFTER CONDONING THE DELAY. A GAINST THIS EFFECT GIVING ORDER, THE ASSESSEE AGAIN FILED APPEAL AND THE TRIBUNAL VIDE T HEIR ORDER DATED 24.02.2009 CONDONED THE DELAY IN GRANTING THE REGISTRATION W.E .F. 01.04.2003 AFTER CONDONING THE DELAY IN FILING OF THE APPLICATION FOR REGISTRA TION OF THE INSTITUTE UNDER SECTION 12A OF THE ACT. IT WAS ARGUED THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES THIS BENCH HAS ALLOWED REGISTRATION IN NUMBER F CASES IN CLUDING THAT OF DECISION IN M.A. NOS.72 TO 82/JU/2007 DATED 14.09.2007, COPIES ENCLOSED AT PAGE NOS.18 TO 20 OF THE PAPER BOOK AND THE JUDGEMENT OF HONBLE RAJA STHAN HIGH COURT IN THE CASE OF CIT VS. KUKS VIDE DATED 18.03.2008 REPORTED IN 2 16 CTR RAJ 277 WHEREIN HONBLE HIGH COURT HAS HELD THAT REGISTRATION IS TO BE GRANTED WITH RETROSPECTIVE EFFECT. 5 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 6. ON THE OTHER HAND, LD. CIT (D.R) RELIED ON THE D ECISION OF APPELLATE AUTHORITY. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FOUND THAT THIS BENCH HAS BEEN CONSISTENTLY TAKING VIEW AS HAS BEEN CANVASSED BY T HE LD. AUTHORIZED REPRESENTATIVE. APART FROM THE ABOVE MENTIONED DEC ISION, JAIPUR BENCH OF I.T.A.T. IN THE CASE OF KRISHI UPAJ MANDI SAMITI VS . CIT ORDER DATED 22.12.2006 HAS CONDONED SIMILAR DELAY. THIS DECISION IS REPOR TED IN 299 ITR (JP) (AT) 94 INTER ALIA. ACCORDINGLY, BY RESPECTFULLY FOLLOWING THE CONSISTENT VIEW TAKEN BY THE BENCH AND THE HONBLE JURISDICTIONAL RAJASTHAN HIGH COURT, WE ALLOW THE APPEAL IN ITA NO.77/JU/2009. ITA NO.78/JU/2009 8. SIMILAR ARE THE FACTS IN ITA NO.78/JU/2009, THER EFORE, ON THE SIMILAR REASONING, WE ALSO ALLOW ITANNO.78/JU/2009 FILED IN THE CASE OF KRISHI UPAJ MANDI SAMITI, NEAR POWER HOUSE, FATEHNAGAR. ITA NO.289/JODH/20119 9. THIS APPEAL OF THE REVENUE FOR A.Y. 2004-05 IS D IRECTED AGAINST THE ORDER OF LD. CIT(A), UDAIPUR DATED 15.06.2011. 6 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 10. A PENALTY OF RS.21,99,741/- WAS IMPOSED BY THE A.O. WHEN HE FOUND THAT THE ASSESSEE WAS NOT ENTITLED TO EXEMPTION UNDER SE CTION 10(20) OF THE ACT AFTER 01.03.2003 AS PER AMENDED PROVISIONS OF THE ACT. A PART FROM THE ABOVE, IT WAS OBSERVED THAT THE SAMITI DID NOT STAND REGISTERED U NDER SECTION 12AA OF THE ACT FOR THE PERIOD UNDER CONSIDERATION. THEREFORE, THE ASS ESSEE WAS NOT ENTITLED FOR BENEFIT OF EXEMPTION UNDER SECTION 11 TO 13 OF THE ACT AND HENCE MADE ADDITION WHICH RESULTED IN LEVAY OF PENALTY IN QUESTION. HOWEVER, THE LD. CIT(A) HAS DELETED THIS PENALTY BY HOLDING THE ASSESSEE AS CHARITABLE INSTI TUTION. BUT, SINCE WE HAVE GRANTED REGISTRATION TO THE SAMITI, THIS APPEAL BEC OMES INFRUCTUOUS AS THE ASSESSEE BECOMES ENTITLED TO BENEFIT OF SECTION 11 TO 13 OF THE ACT. ACCORDINGLY, THIS APPEAL OF THE REVENUE STANDS DISMISSED. 11. TO SUM UP, BOTH THE M.AS FILED BY THE ASSESSEE ARE ALLOWED, BOTH THE APPEALS FILED BY THE ASSESSEE I.E. ITA NOS.77 & 78/JU/2009 ARE ALLOWED AND ITA NO.289/JODH/2011 FILED BY THE REVENUE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2013) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH NOVEMBER, 2013 PBN/* 7 MA NOS.10 & 11/JODH/2013 ITA NOS.77, 78/JU/2009 & 289/JODH2011 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, JODHPUR